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Turkey: New Parole Measure Expected to Significantly Lower Prison Population

(Apr. 28, 2020) On April 14, 2020, the Parliament of Turkey passed Law No. 7242 amending Law No. 5275 on the Execution of Penal and Security Measures. The amendments include both provisions that are aimed at lowering the prison population generally and, in response to COVID-19, a temporary release provision for convicts that are serving or have the right to serve time in a minimum security institution and those under supervised release. The temporary release provision is set to expire on May 31, 2020, but may be lengthened by the Ministry of Justice for a maximum of six months upon the suggestion of the Ministry of Health. (Law No. 5275, provisional art. 9(5).)

According to the Turkish Statistical Institute, the prison population in Turkey was 264,842 at the end of 2018, including convicts (78.9%) and those held pending trial (21.1%).  Minister of Justice Abdulhamit Gül stated on April 13, 2020, that there were 17 confirmed COVID-19 cases among inmates in minimum-security correctional institutions and none among those in higher-security facilities.

Changes in the Early Release Regimes

Law No. 7242 amends the supervised freedom and parole provisions of Law No. 5275 by lowering the amount of time a convict must serve in a correctional institution before being considered for supervised freedom or parole. The change in the Law is expected to lower the prison population by approximately 90,000, according to news sources.

Supervised freedom is a sentence execution regime whereby a convict in a minimum security prison may be allowed to serve his or her sentence outside of the correctional institution starting one year prior to the date of parole for the purpose of facilitating rehabilitation. During the period of supervised freedom, the convict may be employed in public service without pay, placed under supervision in a certain geographical location or residence, banned from entering certain places, and required to attend specified programs. Convicts who serve a designated portion of their sentences in good standing eventually become eligible for parole. (Law No. 5275, arts. 105/A(5), 107.)

Law No. 7242 also reduces the general service requirement for parole eligibility from two-thirds of the sentence to half of the sentence (with the underlying sentence remaining unchanged at 30 years for aggravated life sentences and 24 years for life sentences). The potential effect on the prison population is further enhanced by provisional amendments to the supervised freedom regime that increase the “time left to parole” eligibility criterion from one year to three years before the date of parole eligibility for crimes committed before March 30, 2020, enabling eligible convicts to benefit from the regime two years sooner. (Law No. 5275, provisional art. 6.)

However, persons convicted of certain crimes are excluded from these changes. The reduction in the “time left to parole” criterion under the supervised freedom regime does not apply to those convicted of intentional killing; intentional injury against lineal kin, spouse, sibling, or those who are not physically or mentally capable of defending themselves; torture and torment; crimes against sexual inviolability (sexual assault, child molestation, sexual intercourse with minors, and sexual harassment); crimes against privacy and confidentiality; production and trade of narcotics and psychotropic substances; and crimes against national security, the constitutional order, national defense, state secrets, and espionage. (Turkish Penal Code (TPC) arts. 81–83, 86–87, 94–96,102-105, 132–138, 188, 302–339, respectively.) Crimes included in the Anti-Terrorism Law (Law No. 3713) are also excluded.

Likewise, the reduction in the parole eligibility requirement does not apply to those convicted of intentional killing, intentional injury aggravated by permanent damage to the face, torture and torment, non-penetrative sexual assault, sexual intercourse with minors, sexual harassment, crimes against privacy and confidentiality, production and trade of narcotics and psychotropic substances, crimes against state secrets and espionage, establishing or leading and organization for the purpose of committing a crime (TPC art. 220), crimes committed in the context of the activities of a criminal organization (which is provided as an aggravating factor for numerous crimes in the TPC), or crimes included in the Anti-Terrorism Law or the Law on State Intelligence Services and the National Intelligence Organization (Law No. 2937). The crimes of penetrative sexual assault, child molestation, sexual intercourse with minors committed by close relatives or persons to whom the minor was entrusted, and production and trade of narcotics and psychotropic substances, which have a longer requirement period of three-fourths of the total sentence, are also excluded from the reduction. (TPC art. 108(9).)

Criticism of the Amendments

In opening debates on procedure, MPs belonging to opposition parties argued that the amending law should be debated as a special amnesty law, which would have made it impossible for the law to pass with only the votes of MPs belonging to the ruling Justice and Development Party (AKP) and its ally the Nationalist Movement Party (MHP), due to the qualified majority required. The AKP and MHP MPs that penned the draft bill argued that the law was not an amnesty but a “reform of the law of execution of sentences” and thus should be considered as a change in execution policy, which, they argued, could be effected via enactment of ordinary law according to Constitutional Court precedent. The speaker of the parliament ultimately determined that the law should be debated as an ordinary law, but some opposition MPs vowed to lodge a constitutional complaint with the Constitutional Court on the point. On April 22, a representative of the parliamentary group of the Republican People’s Party (CHP) announced in a press conference that they were the filing the complaint.

Article 87 of the Constitution of Turkey and article 92 of the Bylaw of the Parliament provide that the parliament may enact a “general” or “special” amnesty with a three-fifths majority vote of the total number of MPs (360 of 600). General or special amnesty are not defined in these documents, but in the TPC. Under the TPC, general amnesty causes criminal proceedings to be discontinued and corresponding punishments are voided along with all of their legal consequences. (TPC art. 65(1).) Special amnesties, on the other hand, may reduce or terminate a term of confinement in a correctional institution, or convert it into a judicial fine. (Art. 65(2).) In a special amnesty, the loss or suspension of civil rights caused by the conviction continues to be effective. (Art. 65(3).) Thus, “special amnesty” is essentially a commutation of sentence.

Opposition party groups in the parliament have also criticized the amending law based on various other points, arguing, for example, that it included no provision for the early or temporary release of those held on remand, which in effect renders the law discriminatory if the purpose is to lower the prison population in response to the COVID-19 outbreak, and that the law excluded from the reductions certain crimes such as anti-terrorism laws or crimes against state secrets, which, they argued, have been abused by the government to punish dissidents.